AN ANALYSIS OF PROCEDURAL GUIDELINES FOR INCEPTION, INSPECTION, DETENTION, RELEASE AND CONFISCATION OF GOODS IN MOVEMENT AND CONVEYANCES

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1 AN ANALYSIS OF PROEDURAL GUIDELINES FOR INEPION, INSPEION, DEENION, RELEASE AND ONFISAION OF GOODS IN MOVEMEN AND ONVEYANES MA SUSANA KUMAR SAHA GS onsultant entral Board of Indirect axes and ustoms vide ircular No. 41/15/2018 GS dated 13th April, 2018 has laid down procedures in relation to inception, inspection, detention, release, confiscation of goods and the conveyances. he entral Government, on the recommendations of the ouncil, is empowered to formulate procedures to be followed by certain classes of registered persons, under section 68 of the GS Act, 2017 (corresponding SGS or UGS Act, 2017). Based on the power conferred under this section, Government has notified EWB rules, viz, Rule 138 to 138A. he procedures laid down in the said circular are to be read together with corresponding applicable provisions of the Act and Rules. he following table tries to corroborate different actions and correlate them sequentially: Sub-section (1) of section 68 of the GS Act, 2017 he Government may require the person in charge of a conveyance to carry with him: # such documents, and # such devices, as may be prescribed. Sub-section (2) of section 68 of the GS Act, 2017 Details of documents required to be carried under sub-section (1) shall be validated. Sub-section (3) of section 68 of the GS Act, 2017 onveyance when intercepted by Proper Officer (PO), person in charge of the conveyance is liable to produce documents and devices. D O U M E N Sub-rule (1) of Rule 138A of the GS Rules, 2017 Person in charge of a conveyance shall carry # invoice, or # bill of supply, or # delivery challan. A I O N Section 129 of the GS Act, 2017 Detention, seizure and release of goods and conveyances in transit. F U R H E R A I O N Section 130 of the GS Act, 2017 onfiscation of goods or conveyances and levy of penalty. In order to ensure uniformity in the implementation of the provisions of the GS Act, 2017 across all field formations, the Board, in exercise of the powers conferred under sub-section (1) of section 168 of the GS Act, 2017 which inter alia includes power given to Board to issue orders, instructions or directions, has issued instructions, which are discussed herein below: AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 3

2 (a) (i). Jurisdictional ommissioner or an Officer authorised by him, shall by an order, designate an Officer / Officers as Proper Officer / Officers (PO), (ii). PO to conduct interception and inspection of conveyances and goods in the jurisdictional area specified in the order. PO is authorised to exercise his authority within the jurisdictional area. Sub-rule (3) of Rule 138B of the GS Rules, 2017 may be referred for authorisation of ommissioner. (b) (i) PO, being empowered to intercept a conveyance, may intercept any conveyance for verification of documents and/or inspection of goods. PO is empowered under sub-section (3) of section 68 of the GS Act, 2017, to be read with sub-rule (1) of rule 138B of the GS Rules, (ii) he person in charge of the conveyance shall produce the documents related to the goods and the conveyance to the PO. Person in charge of the conveyance is bound by law to comply. (iii) An e-way bill number may be available with the person in charge of the conveyance, or in the form of print out, sms, or it may be written on the invoice. All forms of e-way bill have been given validity. (a) sub-rule (1) of Rule 138A stipulates the person in charge of a conveyance shall carry: a copy of e-way bill in physical form... Note: Sub-rule (1) of Rule 138B of the GS Rules, 2017 inter alia covers the scope to verify the e-way bill or the e-way bill number in physical form during movement of goods by the PO. e - way bill no written on the invoice, can be construed as, e-way bill no in physical form which has been given validity. (iv) Where a facility exists, e-way bill can be verified electronically in either one of the followings: - logging on to - the Mobile App, - through sms by sending EWBVER < EWB_No> to the mobile number onveyance shall be allowed to move further when, prima facie, no discrepancies are found in the documents. Sub-rule (1) of Rule 138A stipulates, the person in charge of a conveyance, shall carry copy of e-way bill number, in electronic form, or mapped to a Radio Frequency Identification Device Number embedded to a conveyance. Rule 138D of the GS Rules, 2017 stipulates that if a conveyance is intercepted and detained beyond 30 minutes, the transporter can upload such information in FORM GS EWB- 04. (c) Proper Officer under rule 138B of the GS Rules 2017 shall be the Officer who has been assigned the functions under sub-section (3) of section 68 of the GS Act, Proper Officer shall be the officers as defined in ircular No. 3/3/2017 GS, dated (d) Person in charge of the conveyance either fails to produce any prescribed documents, Or PO intends to undertake inspection of goods Statement of the Person in charge of the conveyance is recorded by the PO in FORM GS MOV 01. PO shall issue an order for physical verification / inspection of goods, conveyance and documents in FORM GS MOV 02. PO within 24 hours of issuance of FORM GS MOV 02, prepare a report in PAR A of GS EWB 03 and upload the same on the common portal FORM GS MOV 01 Statement of the owner/driver/person in charge of the goods and conveyance: i) Personal declaration; ii) Details of the transporter; iii) Particulars of goods as per documents in the form of an Annexure attached to the FORM. i) Order for physical verification / inspection of the conveyance and documents, ii) Reasons for issuance of such order. iii) Directs owner / driver / person-in-charge: to station the conveyance the conveyance at own risk and responsibility. to allow and assists in physical verification and inspection of the goods in movement and related documents. not to move the goods or conveyance from the place where it is stationed or not to part with goods until further order. Sub-rule (1) of rule 138 of the GS Rules, 2017 stipulates Proper Officer to upload the inspection report. AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 4

3 (e) PO shall conclude the inspection proceedings, either by himself or through any other Proper Officer authorised in this behalf. In case an extension is required, PO shall obtain a written permission from the ommissioner or an Officer authorised by him in FORM GS MOV 03. ime period to conclude inspection proceedings is three working days. he word working has been added additionally here. ircular is silent about who shall authorise a person or the manner of authorisation Additional Proper Officer. Note: 1. Board has issued instruction under sub-section (1) of section 168 of the GS Act, 2017 wherein the word working has been inserted. he entral Government, based on the power conferred under section 68 of the GS Act, 2017, (corresponding SGS or UGS Act, 2017) has notified EWB rules. an Board amend rule under section 168(1) of the GS Act, 2017? 2. he additional word working by all means shall extend the travel time which is in contradiction with one of the objectives of e-way bill. 3. Ultravires Rule 138 of the GS Rules 2017, as provision for extension has not been mentioned in the said rules. 4. PO appears to be the sole deciding authority for seeking extension of time. 5. No FORM has been specified to seek extension of time and the rationale behind it. 6. he circular is silent on maximum period of extension of time. (f) On completion of physical verification / inspection of the conveyance and goods in movement, PO shall prepare a report of physical verification in FORM GS MOV 04, person in charge of the goods and conveyance will be served a copy. Final report in Part B of FORM GS EWB 03 within three days of such physical verification. ii) i) FORM GS MOV 04 is a physical verification report in relation to FORM GS MOV 02, Person in charge or owner acknowledges the receipt of the report by putting his signature. (g) Proper Officer completes inspection of goods and conveyance: FORM GS MOV 06 contains reasons for issuing order of detention, further the order corroborates the reasons for issuing order for physical verification / inspection of the conveyance, goods and documents in FORM GS MOV 02, and physical verification and inspection of goods report in FORM GS MOV 04. No discrepancy is found during inspection PO is of the opinion that the goods and conveyance need to be detained under section 129 of the GS Act, 2017 PO shall issue forthwith a release order in FORM GS MOV - 05 and allow the conveyance to move forward. PO shall issue an order of detention under section 129 of the GS Act, 2017 in FORM GS MOV - 06 PO shall issue a notice in FORM GS MOV 07, in accordance with the provisions of sub-section (3) of section 129 of the said Act, specifying the tax and penalty payable. Order of detention further directs driver/person in charge to station the conveyance at his own risk and responsibility and not to part with any goods till release order in FORM GS MOV 05 is issued. When a notice in FORM GS MOV 07 is issued, the notice shall be served on the Person in charge of the conveyance although a provision in FORM GS MOV 07 has been made to issue the notice to Driver / Person in charge. Note: Does it mean that the notice shall be served on the Driver, in case Person in charge of the conveyance is not available? omputation of tax & penalty in FORM GS MOV 07: lause (a) of sub-section (1) of section 129 of the GS Act, 2017 stipulates in case of taxable goods: applicable tax plus 100% of tax amount as penalty, and in case of exempted goods: lower of amount equal to two per cent of the value of goods or rupees twenty five thousand, when owner of the goods come forward. lause (b) of sub-section (1) of section 129 of the GS Act, 2017stipulatesin case of taxable goods: applicable tax reduced by the amount of tax paid plus 50% as penalty, and AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 5

4 (h) On payment of tax and penalty, release the goods and conveyance by an order in FORM GS NOV 05, and the order in FORM GS MOV 09 shall be uploaded on the common portal, and the demand accruing from the proceedings shall be added in the electronic liability ledger, payment shall be credited to the electronic liability ledger by debiting electronic credit ledger or electronic cash ledger. in case of exempted goods: lower of amount equal to five per cent of the value of goods or rupees twenty five thousand, where the owner of the goods doesn t come forward. he recipient is directed to show cause, within seven (07) days from the receipt of this notice as to why the tax and penalty mentioned supra should not be payable by him. Recipient of notice if fails to reply to the show cause, further proceedings under the GS law shall be initiated. Recipient of notice is directed to appear before the Proper Officer at a given date and time. In case the recipient fails to appear on the given date and time, the matter will be decided ex-parte on the basis of available records and on merits. Point of observation: FORM GS MOV 07 doesn t provide for giving another opportunity to appear before PO which needs reconsideration for the sake of principles of natural justice. Payment of tax and penalty shall be made in accordance with the provisions of section 49 of the GS Act, 2017: Electronic credit ledger shall be debited for making payment of tax subject to availability of balance, In case of inadequate balance in electronic credit ledger, electronic cash ledger shall be debited for payment of tax, Payment of penalty shall be made by debiting electronic cash ledger only. (i) lause (c) of sub-section (1) of section 129 of the GS Act, 2017 stipulates furnishing a security equivalent to the amount payable under clause (a) or (b) of sub-section (1) of section 129 of the GS Act, 2017, discussed in para no (g) Supra. Owner of the goods, or the person authorized by him, or any person other than the owner of the goods comes forward to get the goods and the conveyance released. Person may furnish a bond in FORM GS MOV 08 along with a security in the form of bank guarantee equal to the amount of tax and penalty. he finalisation of the proceedings under section 129 of the GS Act shall be taken up on priority by the officer concerned and the demand may be adjusted from the security provided. Note: Maximum time period to complete adjudication has not been prescribed in the circular. (j) When objections are filed against the proposed tax and penalty payable, the PO shall consider such objections, and thereafter pass a speaking order in FORM GS MOV 09, quantifying the tax and penalty payable. Payment is to be made within seven (07) days from the date of issue of the order of detention in FORM GS MOV 06. On payment of tax and penalty, goods and conveyance shall be released forthwith by an order FORM GS MOV 05. he order in FORM GS MOV 09 shall be uploaded on the common portal, Mechanism of tax and penalty accruing, payment thereof, shall follow same mechanism as discussed in para (h) supra. Note: No specified procedure has been mentioned to file objection. In case of failure to pay within the stipulated period as directed in the notice, action under section 130 of the entral/state Goods and Services ax Act /section 21 of the Union erritory Goods and Services ax Act or section 20 of the Integrated Goods and Services Act shall be initiated. (k) In case proposed tax and penalty are not paid within seven days from the date of issue of the order of detention in FORM GS NOV 06, A notice shall be served in FORM GS MOV 10 for initiating action under section 130 of the GS Act, proposing confiscation of goods and the conveyance and imposition of penalty. Note: PO doesn t invoke section 130 directly in this case. AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 6

5 (l) Where PO is of the opinion that such movement of goods has been effected to evade payment of tax, PO may directly invoke section 130 of the GS Act, 2017, issuing notice in FORM GS MOV 10, proposing confiscation of goods and conveyance. Where conveyance is used for the carriage of goods or passengers for hire, the owner of the conveyance shall also be issued a notice under the third proviso to sub-section (2) of section 130 of the GS Act, proposing to impose a fine equal to the tax payable on the goods being transported in lieu of confiscation of the conveyance. (m) he person shall be given an opportunity of being heard before confiscation of goods or conveyance, or imposition of penalty. An opportunity of being heard ensures principle of natural justice. (n) i) Order of confiscation shall be passed, after due consideration of objections filed by the person, in FORM GS MOV 11 and the order shall be served on the concerned person, ii) iii) iv) Upon passing the aforesaid order, title of the goods stands transferred to the entral Government, he person gets a maximum three months time to make payment and get the goods released. he order in FORM GS MOV 11 shall be uploaded on the common portal, subsequent procedure to add demand and payment thereof is similar to that of discussed in para no (h) supra. he manner and procedure of filing objection by the person has not been defined. Further FORM GS MOV 11 (order of confiscation) doesn t give any scope to record the objection whereas it stipulates PO to give reasons of rejection of such objection. Once FORM GS MOV 11 is issued, FORM GS MOV 9 stands as withdrawn. (0) Procedure for issuing order for confiscation of conveyance in Similar observation as stated in para no (n) FORM GS MOV 11 and subsequent all similar course of actions. supra. (p) Orders referred in para no (n) and (o), stated above, may be For the ease of procedural activities. passed as a common order in FORM GS MOV 11. (q) In case neither owner nor any person other than owner comes forward to make the payment as stipulated in FORM GS MOV 11, PO shall auction the goods and/or conveyance by public auction system, and the sale proceeds shall be remitted to the account of the entral Government. Auction by public auction system is allowed. hus there is no scope for private auction. (r) In case of perishable or hazardous goods, suitable modifications in the time allowed for service of notice or order for auction or disposal shall be done. Authority for modification in the allowable time has been vested with the PO. Para No (s) Instruction Whenever an order has been passed by PO under the GS Act 2017, corresponding order or proceedings shall be passed by respective State / Union erritory GS Act and under GS (ompensations to States) Act, 2017, if applicable. (t) he above narrated procedure shall apply mutatis mutandis for an order or proceedings under the IGS Act, AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 7

6 (u) In case of an unregistered person, A temporary ID shall be created for making the payment, procedure being same as discussed in para (h) supra. (v) A summary of every order in FORM GS MOV-09 and FORM GS MOV-11 shall be uploaded electronically in FORM GS-DR-07 on the common portal. he format of FORMS GS MOV-01 to GS MOV-11 are annexed to the ircular No. 41/15/2018 GS. Section 164 of the GS Act, 2017 empowers the entral Government, on the recommendation of the entral ouncil, to make rules for carrying out provisions of the Act. Section 165 of the GS Act, 2017 empowers the Board, by notification, make regulations, consistent with this Act and the rules made there under to carry out the provisions of this Act. Section 168 of the GS Act, 2017 empowers the Board to issue such orders, instructions or directions to the entral tax officers, for the sake of uniformity in implementation of this Act. Board has inserted FORMS with ircular No. 41/15/2018 GS dated 13th April, Point to ponder whether Board can insert FORMS in Rules while issuing instructions through a circular? AX BULLEIN MAY, 2018 VOLUME HE INSIUE OF OS AOUNANS OF INDIA 8